The patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to become involved.
Held: When an adult whose mental health is in issue has clearly expressed the wish that her nearest relative is not to be involved in decisions about her case, and it appears to the AMHP that to contradict that wish may cause the patient distress to the extent of affecting her health, the AMHP is entitled to regard consultation with the nearest relative as not reasonably practicable.
Practicality under the 1983 Act should be approached on the basis that the patient’s interests are to be considered. A judgment has to be made, but it must always be borne in mind that one of the doctors who is concerned with recommending compulsory admission should have had previous acquaintance with the patient. Thus only if it is considered on reasonable grounds to be appropriate in given circumstances for doctors who have not had previous acquaintance to decide whether to recommend admission should such a course be adopted.
Bennett J said: ‘So in the Applicant’s case, prima facie, the approved social worker is obliged to inform the nearest relative under subsection (3) and consult with her under subsection (4). If such were to happen it would be against the Applicant’s express wishes and it could harm her health. Furthermore, in my judgment such contact with Mrs S would either be futile, as Mrs S would take no interest in the matter, or it might give Mrs S the opportunity to interfere even benevolently, as she might see it, in the life of the Applicant.
However, within both subsections (3) and (4) are the words ‘as are practicable’ and ‘not reasonably practicable’ respectively. Can these words be so legitimately interpreted so as to [relieve] the approved social worker, in the instant case, of having to inform, under subsection (3), and/or consult, under subsection (4), with Mrs S. In my judgment they can, for the reasons which I will now give.
Section 3(1) of the Human Rights Act 1998 requires the court, in construing section 11 of the Mental Health Act, so far as possible, to interpret it in a way which is compatible with the Applicant’s rights under the European Convention. In my judgment that is perfectly possible. Indeed, even without that statutory imperative, ‘practicable’ and ‘reasonably practicable’ can be interpreted to include taking account of the Applicant’s wishes and/or her health and well-being.’
Judges:
Bennett J
Citations:
[2005] EWHC 74 (Admin)
Links:
Statutes:
Mental Health Act 1983 11(4), Human Rights Act 1998 3
Jurisdiction:
England and Wales
Citing:
Cited – Dedman v British Building and Engineering Appliances CA 1973
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not ‘practicable’. He did not . .
Cited by:
Cited – TTM v London Borough of Hackney and Others Admn 11-Jun-2010
The claimant had said that his detention under the 1983 Act was unlawful, and that the court should issue a writ of habeas corpus for his release. Having been released he sought damages on the basis that his human rights had been infringed. The . .
Cited – TTM v London Borough of Hackney and Others CA 14-Jan-2011
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .
Lists of cited by and citing cases may be incomplete.
Health, Human Rights
Updated: 29 June 2022; Ref: scu.222721